New Target In Voter ID Battle: 1965 Voting Rights Act

A voter casts his ballot in a West Miami, Fla., fire station during the Republican primary in January.

J Pat Carter
/ AP

Originally published on August 3, 2012 9:49 am

A landmark federal law used to block the adoption of state voter identification cards and other election rules now faces unprecedented legal challenges.

A record five federal lawsuits filed this year challenge the constitutionality of a key provision in the Voting Rights Act. The 1965 statute prevents many state and local governments from enacting new voter ID requirements, redistricting plans and similar proposals on grounds that the changes would disenfranchise minorities.

The plaintiffs, which include Alabama, Florida and Texas, are aiming for the Supreme Court because some justices in a previous ruling openly questioned the continued need for parts of the Voting Rights Act. The high court recently received two of the cases on appeal and could take them up in the fall term.

The three states, and two smaller communities in Alabama and North Carolina, want to regain autonomy over their elections, which are under strict federal supervision imposed by the Voting Rights Act to remedy past discrimination.

The complaints ask the courts to strike down the central provision in the law, known as "pre-clearance," which requires governments with a history of discrimination to get federal permission to change election procedures. Pre-clearance is enforced throughout nine states and in portions of seven others. Most of the jurisdictions are in the South.

The Justice Department has used the pre-clearance provision to reject several of the plaintiffs' initiatives, including Texas' strict voter ID law.

Across the nation, legal battles are escalating over a wave of state laws passed in the past two years that impose photo ID requirements, scale back early voting periods and restrict voter-registration efforts, among other changes. The litigation has become sharply partisan because the changes could influence voter turnout in the November elections. Voter ID laws have been the most contentious, as nine of the 11 states that have passed photo ID laws have Republican governors.

Proponents of the Republican-led initiatives say their intent is to prevent voter fraud and shore up the election system. Opponents, mainly Democrats and voting and civil rights groups, insist the measures are aimed at suppressing turnout among minorities and young people, who tend to vote for Democratic candidates. The Justice Department has challenged many of these measures in lawsuits filed under the Voting Rights Act.

Challengers argue that they should no longer be forced to comply with the pre-clearance mandate because efforts to prevent minorities from registering, voting or winning elected office were abolished many years ago.

"These jurisdictions have made enormous strides in increasing minority participation in elections and voter registration, but also in the election of minority officials," says Washington attorney Michael Carvin. He represents the plaintiffs in the Kinston, N.C., case, which is one of two jurisdictions that have petitioned the Supreme Court.

Critics Question Methodology

Since its passage, judges have consistently upheld the Voting Rights Act and Congress has reauthorized it four times based on determinations that discrimination in elections continues. The civil rights law is widely considered the most effective of its kind in U.S. history.

But a push to scale back the statute gained momentum from the last challenge before the Supreme Court, in 2009. The justices declined to answer the constitutional question but signaled that the law's future isn't assured.

"In part due to the success of that legislation, we are now a very different Nation," Chief Justice John Roberts wrote in the majority opinion, adding that continued enforcement "must be justified by current needs."

Roberts was alluding to one of the strongest criticisms of the pre-clearance provision and one detailed in the federal complaints — that enforcement is determined by a formula of minority voting statistics from 1964, 1968 and 1972. The methodology fails to account for decades of gains in minority voting and representation in office.

Critics fault Congress for failing to update the formula when it reauthorized the statute in 2006 for another 25 years. Many state and local officials believe that the use of current figures would exempt most jurisdictions from pre-clearance, as Alabama explained in its complaint filed last week:

"[I]t is no longer constitutionally justifiable for Congress to arbitrarily impose disfavored treatment on Alabama and other covered jurisdictions by forcing them to justify all voting changes to federal officials ... for another 25 years even though, if the coverage formula were applied using 2000, 2004 and 2008 voter registration and participation rates, Alabama would no longer be covered."

Alabama has long chafed at compliance and, in 1965, was the first jurisdiction to challenge the Voting Rights Act. The Supreme Court ruled against the state.

But supporters credit pre-clearance, as the enforcement arm of the law, with breaking the most blatant and unrepentant systems of discrimination.

"It has been extraordinarily successful at changing people's habits," says veteran civil rights attorney Armand Derfner of South Carolina, who has successfully argued voting rights cases before the Supreme Court. He represents the League of Women Voters in a lawsuit against South Carolina's voter ID law. "I think a lot of public officials actually like pre-clearance because it keeps the government bodies on their toes."

Clearest Impact In The South

Most data show minority voter participation, both in registration and balloting, has gradually increased since the 1960s.

The Pew Research Center says the 2008 elections had the most diverse U.S. electorate, as nonwhites made up nearly 24 percent. Whites' share of total turnout dropped 3 percentage points from 79 percent in 2004.

Black turnout reached a record 65 percent in 2008, compared with 55 percent in 1988, according to the Pew study. Driven by Barack Obama's presidential campaign, blacks voted at the same rate as whites for the first time.

The greatest impact of the Voting Rights Act is clear among blacks in the South.

In the 1964 presidential election, 72 percent of blacks in the Northeast, Midwest and West voted, according to the Census Bureau. Only 44 percent of blacks in the South cast ballots.

By 2008, black turnout in the South reached 63 percent, surpassing black turnout in all other regions, the Census data show.

"No rational person can think the South of today looks anything like the South of the 1960s," Carvin says. "There's no cognizable difference between the South and other jurisdictions."

Increased minority voting also has boosted minority representation in local, state and federal elected offices.